Supreme Court Midterm Report

When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone. The first argument day of each term is always the first Monday in October. There are other key points in the term, but they float a bit. One of those floating dates is the Monday after the last January argument. That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules. Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case. Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October. That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June. With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.

At this point of the calendar, there have already been four argument sessions. (Each argument session consists of two weeks of argument with arguments scheduled for Monday, Tuesday, and Wednesday of each week. Typically, two cases are argued on each day.) Three argument sessions remain (starting respectively on February 22, March 21, and April 18).

Already the Supreme Court has heard arguments on whether redistricting should consider total population or just eligible voters (Evanwel vs. Abbott), union dues for public employees (Friedrichs v. California Teachers Association), affirmative action in college admissions (Fisher vs. University of Texas). and one case about the status of Puerto Rico (Puerto Rico vs. Sanchez Valle).

In the February session, the Supreme Court will hear an argument about abortion rights (Whole Women’s Health vs. Cole).

In the March and April sessions (the exact schedule for the two sessions has not yet been announced), the Supreme Court will hear arguments about religious accommodations to the contraceptive mandate of the Affordable Care Act (Zubik v. Burwell), redistricting in Virginia (Wittman v. Personhuballah), immigration policy (United States vs. Texas), corruption by the (now former) Republican Governor of Virginina (McDonnell vs. United States), state bans on public aid to religious schools (Trinity Lutheran Church vs. Pauley), and a second case about the status of Puerto Rico (Puerto Rico vs. Franklin CA Tax-Free Trust). Technically, the Supreme Court has granted twenty-six cases for March and April. More likely than not, the Supreme Court will have one or more afternoon arguments. (Most argument days, the Supreme Court only hears argument in the morning, typically two cases unless a case needs extended argument or there are not enough cases.) There is a possibility, however, that the Supreme Court might kick a case to October, particularly if something unusual in the case warrants giving the parties more time to file their written arguments.

As the short list of the clearly political cases should indicate, a lot of people are going to be mad with the Supreme Court in July. Furthermore, many of these cases will end up as 5-4 decisions with Justice Kennedy being the determining vote. Given the age of Justice Kennedy, whomever wins in November will probably get to appoint his replacement. Similarly, given their ages, the next President may get to appoint replacements for Justice Scalia, Justice Ginsburg, and Justice Breyer. If the Republicans get to appoint Justice Kennedy’s replacement, a lot of decisions that the conservatives won by a 5-4 vote (several of which required overturning decades old cases) will be locked in for the next 10-15 years and Chief Justice Roberts becomes the new swing vote. If Justice Breyer or Justice Ginsburg also retires, a lot of liberal decisions will be at risk. On the other hand, if a Democrat wins, Justice Breyer and Justice Ginsburg will be able to safely retire and there is a good chance (with Kennedy likely to retire and Scalia possibly retiring) for some recent decisions (Citizens United, Shelby County) to be quickly corrected.